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PESA, FIfth Schedule

The Ministry of Tribal Affairs has celebrated the 25^th year of the inauguration of the Panchayats (Extension to Scheduled Areas) Act 1996 (PESA)’ as a part of Azadi Ka Amrit Mahotsav.

What is PESA?

• The PESA is a law enacted by the govt. for ensuring self-governance through traditional Gram Sabhas for people living in the Scheduled Areas of India.
• Scheduled Areas are areas identified by the Fifth Schedule of the Constitution of India.

What are Scheduled Areas?

• “Scheduled Areas” mean the Scheduled Areas as referred to in Clause (1) of Article 244 of the Constitution.
• They are found in ten states of India which have predominant population of tribal communities.
• At present, Scheduled Areas have been declared in the States of AP (including Telangana), Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, MP, Maharashtra, Odisha and Rajasthan.

Powers granted to Gram Sabha/Panchayats

• Land acquisition: To be consulted on matters of land acquisition and resettlement.
• Mining licencing: Grant prospecting license for mining lease for minor minerals and concessions for such activities.
• Water Bodies: Planning and management of minor water bodies.
• Regulation of Liquor: The power to enforce prohibition or to regulate or restrict the sale and consumption of any intoxicant.
• Minor Forest Produces: The ownership of MFPs
• Land reforms: The power to prevent alienation of land and to restore any unlawfully alienated land of a scheduled tribe.
• Village Markets: The power to manage village markets.
• Money Lending: The power to exercise control over money lending to scheduled tribes.

Role of Governor in Implementation of PESA

(1) Report as sought by the President:

• As per para 3 of the Fifth Schedule, the Governor therein is required to make a report to the President regarding the administration of the Scheduled Areas.
• The Attorney General had advised the Home Ministry that the role of the governor in sending this report is discretionary.

(2) Applicability of certain laws:

• An even more significant role of the Governor in scheduled areas arises out of the powers inherent in sub-para (1) of Para 5 of the Fifth Schedule.
• Governor may direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area.

(3) Modification of laws:

• The regulation-making powers of the Area is bound neither by the advice of the Tribes Advisory Council or the assent of the President.
• The provision lays down the responsibility on the Governor to ensure that laws that are contrary to the interests of Scheduled Areas may be suitably modified.

Why was PESA enacted?

• Filling the constitutional vacuum: These Areas were not covered by the 73rd Constitutional Amendment or Panchayati Raj Act of the Indian Constitution as provided in Part IX of the Constitution.
• Self-governance: PESA sought to enable the Panchayats at appropriate levels and Gram Sabhas to implement a system of self-governance.
• Customary regulation: It includes a number of issues such as customary resources, minor forest produce, minor minerals, minor water bodies, selection of beneficiaries, sanction of projects, and control over local institutions.

Significance of PESA

• Tribal autonomy: PESA was seen as a panacea for many of these vulnerabilities where the tribal communities in such Scheduled Areas were to decide by themselves the pace and priorities of their development.
• Tribal way of development: PESA was viewed as a positive development for tribal communities in Scheduled Areas that had earlier suffered tremendously from engagement with modern development processes.
• Sustainable access to forests: The loss of access to forest, land, and other community resources had increased their vulnerability.
• Easing of tribal distress: Rampant land acquisition and displacement due to development projects had led to large-scale distress in tribal communities living in Scheduled Areas.

Issues with PESA

• Dilution of the role of Tribal Advisory Councils: PESA mandates Tribal Advisory Councils to oversee tribal affairs and also gives extrajudicial, extra-constitutional powers to the Governors.
• Politicization: The councils, with the CM as their chairperson, have evolved into a non-assertive institution amid the machinations of upper-class politics.
• Non-involvement: The Governors, in order to have friendly relations with the Chief Ministers, have desisted from getting involved in tribal matters.
• Lack of coordination at Centre: Two different ministries, the Ministry of Panchayati Raj and the Ministry of Tribal Affairs, have an overlapping influence and they function almost without any coordination.
• Lack of operationalization: In most of the state the enabling rules are not in place more than eight years after the adoption of the Act suggests the reluctance to operationalize the PESA mandate.
• Ignoring the spirit of PESA: The state legislations have omitted some of the fundamental principles without which the spirit of PESA can never be realised.
• Ambiguous definitions: No legal definition of the terms  like minor water bodies, minor minerals etc. exist in the statute books.